CASE ANALYSIS OF JAYALALITHA v.

SUBRAMANIAN SWAMY
SUBMITTED BY-
KARISHMA RAJPUT (BC0160021)

FACTS:
The writ petitioner Ms. Jayalalitha was elected to the Legislative Assembly of Tamil Nadu in
the general elections held in June 1991 and as such she has been functioning as the Chief
Minister of the State. She had formed a partnership firm, known as "Jaya Publications"
(registered on 5.2.1990) with one Tmt. V. Sashikala, before she was elected to the Legislative
Assembly. Mr. T.N Seshan (second respondent) filed a petition dated 2.10.1992 before the
Governor of Tamil Nadu under Article 192 of the Constitution of India to declare that the Ms.
Jayalalitha has become subject to a disqualification mentioned in Clause (e)(1) of Article
191 of the Constitution and as such her seat in the Legislative Assembly has become vacant
as the partnership firm "Jaya Publications" of which she is a partner had entered into a
contract with the State Government and that contract subsisted. This petition was not
immediately forwarded by the Governor to the Chief Election Commissioner for opinion
under Article 192(2) of the Constitution. Governor of Tamil Nadu, on 27.3.1993, forwarded
the petition to the Election Commission. Here Ms. Jayalalitha filed writ petitions seeking a
writ of prohibition restraining the first respondent from in any manner dealing with, hearing,
adjudicating upon, or disposing of the memorandum dated 2.10.1992 and prayed for a
declaration that she has not incurred the alleged disqualification under Article 191(1)(e) of
the Constitution, read with Section 9-A of the Representation of the Peoples Act, 1951 (for
short, R.P. Act) as alleged by the second respondent in his petition dated 2.10.1992. This writ
is sought on the ground that the writ petitioner entertains a reasonable apprehension that the
first respondent (Mr. T.N. Seshan) is biased in favor of respondent No. 2 and as such, there is
a likelihood of the decision of the first respondent being affected by bias.

ISSUES:

1. Whether the learned single judge is justified in going into the question as to whether
the writ petitioner has become subject to the disqualification in terms of Article
191(1) of the Constitution, read with Section 9-A of the R.P. Act.
 2. Whether, in the facts and circumstances of the case, it can be held that the
apprehension of bias entertained by the writ petitioner that she is not likely to get a
fair and unbiased decision at the hands of the Chief Election Commissioner, Mr. T.N.
Seshan, on the petition dated 2.10.1992 filed by the second respondent, is reasonable.

3. Whether the doctrine of necessity is attracted in the light of the insertion of Chapter
III containing Sections 9 and 10 in the Chief Election Commissioner and other
Election Commissioners (Conditions of Service and Transaction of Business) Act,
1991.

JUDGEMENT:
On the first issue, Court gave the reasoning that if a member of a house of the Legislature of a
State has become subject to any of the disqualifications mentioned in Clause (1) of Article
191 of the Constitution, that decision by itself will not result in the seat of such member in
the house becoming vacant under Article 190(3) of the Constitution. It is only the decision of
the Governor on that question that will attract Article 190(3) of the Constitution. Further,
what is binding upon the Governor is the opinion of the Election Commission.  The question
as to whether the writ petitioner has become subject to any of the disqualifications mentioned
in Clause (1) of Article 191 of the Constitution read with Section 9-A of the Representation
of the People Act should not have to be decided by the court when the same question is
pending before the Election Commission under Article 192(2) of the Constitution. Also, On
the first issue court observed that there are several points to consider that there was a
reasonable apprehension of bias-

a) The first respondent on paying a heavy court-fee of Rs. 1 lakh, has filed Civil Suit
against the United News of India, claiming a sum of Rs. 1 crore as damages for
defamation alleged in the suit.
b) The first respondent has filed such a suit through Dr. Roxna S. Swamy, Advocate,
who is none other than the wife of the second respondent, Dr. Subramanian
Swamy. Dr. Roxna S. Swamy assisted the second respondent in a writ petition filed
by him in the Supreme Court against the present writ petitioner and the Governor of
Tamil Nadu, seeking a mandamus to the Governor to forward the petition dated
2.10.1992 filed by him to disqualify the writ petitioner from being a Member of the
State Legislature.
 c) It would be unrealistic to think or consider that Dr. Roxna S. Swamy, when she has
been assisting her husband, the second respondent, in prosecuting the proceeding
against the writ petitioner before the Supreme Court and before this Court, would not
be interested and unaware of the proceedings in question and the importance and
value of the same to her husband.
d) The first respondent is a family friend of the second respondent and he was also a
student of the second respondent when the second respondent was a Professor of
Economics at Harward University.

Based on these points court observed that facts and circumstances would establish that there
is more than an ordinary relationship between the first respondent on the one hand and the
second respondent and his wife on the other. The apprehension of bias entertained by the writ
petitioner that she is not likely to get a fair and just decision at the hands of the Chief Election
Commissioner, Mr. T.N. Seshan, on the petition dated 2.10.1992 filed by the second
respondent is reasonable according to the court.

On the other issue, the court observed that it is not possible to hold that as a result of
Ordinance 32 of 1993, the applicability of the doctrine of Necessity is not in any way affected
and no decision based on the majority without the Chief Election Commissioner can be
arrived at. It has been pointed out by the court that “in the matter of performing of judicial
functions, it is just and appropriate and practicable to entrust it to anyone of the members of
the Chief Election Commissioner individually, with a provision for re-entrustment or transfer
of such function to any other member of the Chief Election Commissioner as the case may be
in the event such Election Commissioner or Chief Election Commissioner becomes
disqualified, to hear and decide the particular matter”. So, the doctrine of necessity cannot be
applied in this case and therefore disqualified Mr. Sheshan from participating in the
proceedings on Ms. Jayalalitha.

ANALYSIS:
The Hon’ble SC through a three-judge seat of Ahmadi, Singh, and B.N. Kirpal held that in
the perspective on the sensible anxiety of predisposition, the Chief Election Commissioner
ought not to participate in the decision-making process. In any case, if the other two election
commissioner’s opinions are in a struggle with one another, at that point, the doctrine of
necessity must be conjured and the Chief election commissioner needs to provide his
conclusion to offer the majority opinion of the Chief Election Commissioner. The Court drew
a relationship between how the court works and how the election commission works. The
Court contemplated that simply like in a court, the Chief Justice is available alongside
different adjudicators; nonetheless, it isn't fundamental for the CJ to participate in all the
cases in giving judgment. Correspondingly, the election commission likewise comprises of
one chief election commissioner and two other election commissioners. There is nothing in
the Constitutional arrangements or any enactment which commands the election
commissioners to mandate election commissioners to participate in the decision-making
process. Notwithstanding, in a practical sense, the election commissioners have been
participating in the decision-making process. Though this line of thinking may appear to be
alluring, it is imperative to comprehend the embodiment of the precept of need. As per the
doctrine, administrative action which probably would be unlawful is allowed in the case of
necessity to accomplish a greater good. Along these lines, it ought to be utilized in the event
of absolute necessity. To decide an absolute necessity, there should be no accessible other
option. Nonetheless, for this situation, under Article 324, additional election commissioners
could have been chosen by the President so the complete no. of the election commissioners
check to an odd number. At that point, regardless of whether there is a strife of assessment
among the election commissioners, there would not have been any trouble in finding out the
majority of the political decision commission. Be that as it may, the Apex Court appears to
have viewed this other option. This option would have not required the Chief Election
Commissioner to partake in the decision-making process and all the while would have
tackled the issue of how the lion's share choice of the election commission would be reached.
There is nothing in law to restrict the appointment of more than two election commissioners.
The Election Commissioners Amendment Act, 1989 made the election commission a multi-
member body. In any case, it involves a practice that from the correction there have been two
election commissioners. The practice proceeded perhaps because such a case never emerged.
The Apex Court neither took a gander at this other option nor did it trouble the applicant to
concoct some other option. To force such a low degree of limit for application of the doctrine
of necessity may abuse the standards of law.